(a) Service-When Required. Except as otherwise provided in these rules, every order required by its terms to be served, and, unless otherwise ordered by the court, every pleading subsequent to the original complaint unless the court otherwise orders because of numerous defendants, every paper relating to discovery required to be served upon a party unless the court otherwise orders, every written motion other than one which may be heard ex parte, every proposed order, order for judgment, decree, finding of fact and conclusion of law, every paper filed with the clerk or submitted to the judge, and every written notice, appearance, demand, offer of judgment, designation of record on appeal, and similar paper shallmust be served uponon each of the parties. No service need be made on parties in default for failure to appear except that pleadings asserting new or additional claims for relief against them shallmustbe served upon them in the manner provided for service of summons in Rule 4.

In an action begun by seizure of property, whether through arrest, attachment, garnishment, or similar process, in which no person need be or is named as defendant, any service required to be made prior to the filing of an answer, claim, or appearance shallmust be made upon the person having custody or possession of the property at the time of its seizure.

(d) Filing.

(1) The summons and complaint must be filed before a subpoena may be issued. The plaintiff shall serve notice of filing the complaint upon the defendant. The defendant shall file the answer within a reasonable time after service of notice of filing the complaint. Unless otherwise provided by statute, these rules or by order of the court, all pleadings, affidavits, bonds and other papers in an action must be filed with the clerk at or prior to the time of the filing of the note of issue. A party may not file discovery materials with the clerk unless the materials are to be submitted to the court for disposition of a pending motion, the court orders them to be filed, or a party certifies that the filing is necessary for safekeeping of the papers or exhibits pending completion of the case. A party certifying that safekeeping is necessary shall state the reasons necessary for safekeeping. The clerk shall return all filed depositions, interrogatories, requests for admission, requests for interrogatories, requests for production of documents, and answers and responses thereto, to the filing party upon final disposition of an appeal or, if no appeal is filed, upon expiration of the time for appeal. If the filing party does not claim a filed document within sixty (60) days after being notified to do so, the clerk may dispose of the document as the court by order may direct. The clerk shall take a receipt for all documents returned.

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EXPLANATORY NOTE

Rule 5 was amended effective 1971, July 1, 1981; March 1, 1986; January 1, 1988; March 1, 1990; March 1, 1992, on an emergency basis; March 1, 1994; January 1, 1995; March 1, 1998.

Subdivisions (a), (b), and (c) are similar to the corresponding subdivisions of Rule 5, FRCivP, with the addition of a reference to specific methods of seizure of property in the second paragraph of subdivision (a), and the requirement in subdivision (b) of obtaining a court order to leave the paper or pleading with the clerk if no address is known for the party or attorney to be served.

In 1971, subdivision (a) was amended by adding the second paragraph concerning actions begun by seizure of property and by adding language in the first paragraph to clarify that all papers relating to discovery must be served on all parties unless the court orders otherwise. Those changes follow the 1970 amendments to the federal rule.

Subdivision (b) was amended, effective March 1, 1990. The amendments were technical in nature and no substantive change was intended. Subdivision (b) was amended, effective January 1, 1995, to provide for service by facsimile transmission.

Subdivision (d)(1) was amended effective March 1, 1986, to alleviate storage problems caused by the filing of discovery materials. Subdivision (d)(1), as amended, limits the situations in which discovery materials may be filed and requires the clerk to return to the filing party after the action is completed certain discovery materials that are filed. Subdivision (d)(1) was again amended, effective January 1, 1988, to set a time certain for the return of discovery materials and to provide a mechanism for disposal of the discovery materials if they are not reclaimed. This amendment conforms to Rule 6.4 of the North Dakota Rules of Court.

Subdivision (d)(2) was amended, effective March 1, 1994, to provide that briefs and other papers in support of a motion are to be filed at least 24 hours before the hearing.

Subdivision (d)(4) was added, effective January 1, 1988, to prevent litigants from adding other parties to a lawsuit without obtaining authorization by the court or unless permitted by Rule 13 or Rule 14, NDRCivP. Documents containing names of additional parties in the caption without authorization by the court or by Rule 13 or Rule 14, NDRCivP, are not eligible for filing. See also Rule 10(a), NDRCivP, which addresses captions and Rule 21, NDRCivP, on Misjoinder and Non-Joinder of Parties.

Subdivision (e), similar to Section 28-0630, NDRC 1943, provides for removal of any original pleading or paper from the clerk's files for service. This is not found in the federal rule.

Subdivision (f) was added {effective July 1, 1981} to allow proof of service either as provided in Rule 4 or by an attorney's certificate. The certificate could be affixed directly to the original pleading or other paper by use of a stamp or other method in order to conserve paper and reduce bulky files.